Following on the heels of Commissioners’ Gallagher and Piwowar’s joint statement calling for a stay of the conflict mineral rules pending final outcome of the National Association of Manufacturers legal challenge, Keith Higgins, Director of Corporation Finance, issued his own statement yesterday clarifying CorpFin’s position in light of the D.C. Circuit Court of Appeals recent ruling on the matter. In relevant part:

[T]he Division expects companies to file any reports required under Rule 13p-1 on or before the due date. The Form SD, and any related Conflict Minerals Report, should comply with and address those portions of Rule 13p-1 and Form SD that the Court upheld. Thus, companies that do not need to file a Conflict Minerals Report should disclose their reasonable country of origin inquiry and briefly describe the inquiry they undertook. For those companies that are required to file a Conflict Minerals Report, the report should include a description of the due diligence that the company undertook. If the company has products that fall within the scope of Items 1.01(c)(2) or 1.01(c)(2)(i) of Form SD, it would not have to identify the products as “DRC conflict undeterminable” or “not found to be ‘DRC conflict free,”‘ but should disclose, for those products, the facilities used to produce the conflict minerals, the country of origin of the minerals and the efforts to determine the mine or location of origin.

No company is required to describe its products as “DRC conflict free,” having “not been found to be ‘DRC conflict free,”‘ or “DRC conflict undeterminable.” If a company voluntarily elects to describe any of its products as “DRC conflict free” in its Conflict Minerals Report, it would be permitted to do so provided it had obtained an independent private sector audit (IPSA) as required by the rule.* Pending further action, an IPSA will not be required unless a company voluntarily elects to describe a product as “DRC conflict free” in its Conflict Minerals Report.

*footnote omitted.

Update: May 5, 2014

On Friday the Commission issued an order formally staying those portions of Rule 13p-1 and Form SD which would require an issuer to disclose that any of its products have “not been found to be DRC conflict free”.

As a procedural matter, the Court of Appeals’ decision which found those portions Rule 13p-1 and Form SD to be in violation of an issuer’s First Amendment rights will not take effect until three days after the rule’s June 2, 2014 filing deadline. As such the Commission is staying those portions of the rule to avoid “the risk of First Amendment harm pending further proceedings”.

The National Association of Manufacturers, U.S. Chamber of Commerce and Business Roundtable have filed an emergency motion in the U.S. Court of Appeals for the D.C. Circuit seeking a temporary stay of the entire conflict mineral rule until such time as the district court issues a decision on that portion of the related case which was remanded for further proceedings.

Issuers’ first Form SD is due to be filed by June 2, 2014 (the filing deadline, May 31, 2014, falls on a Saturday so issuers have until the following Monday to file). However, according to a recent report by PricewaterhouseCoopers only 4% of 700 companies surveyed have completed a first draft of their filing.

What’s more, recall that two weeks ago the U.S. Court of Appeals for the D.C. Circuit ruled that requiring an issuer to describe its products as not having been found to be “DRC conflict free” violates the First Amendment. The Court of Appeals affirmed in part and reversed in part the District Court’s judgement and remanded the case to the lower court for further proceedings.

But Gallagher and Piwowar aren’t the only ones urging the Commission to act. Earlier last week twelve members of Congress, including Senator Durbin, author of the conflict minerals provision in the Dodd-Frank Act, issued a joint letter to Chair White urging that the Commission move forward with implementation of those portions of the rules upheld by the Court of Appeals.

What, if anything, the Commission will do remains to be seen. What we do know is that as of right now the June 2nd filing deadline is just 34 days away and it seems that many companies still have quite a way to go to meet the filing deadline.

Update: April 30, 2014

The National Association of Manufacturers, U. S. Chamber of Commerce and Business Roundtable have filed a motion requesting the Commission stay the conflict mineral rules, or at least the filing deadline for Form SD, pending amendment of that portion of the final rule which invalidated by the Court of Appeal’s decision.

With the filing deadline for the first Form SD a little more than a month away (June 2, 2014), yesterday the Division of Corporation Finance issued nine new FAQs providing additional conflict mineral disclosure guidance. This latest guidance principally addresses the independent private sector audit requirements.

Q13: May an auditor that is not a CPA perform the independent private sector audit (“IPSA”) of an issuer’s Conflict Minerals Report … ?

A13: Yes, if the applicable requirements are met. …

Q14: If, after exercising due diligence on the source and chain of custody of its conflict minerals, an issuer determines that at least one of its products may be described as “DRC conflict undeterminable,” is the issuer required to obtain an IPSA of its Conflict Minerals Report during the temporary transition period (four years for smaller reporting companies and two years for all other issuers)?

A14: No. …

Q15: If an issuer does not obtain an IPSA of its Conflict Minerals Report because one of its products is “DRC conflict undeterminable,” may it describe any of its other products as “DRC conflict free” in its Conflict Minerals Report?

A15: No. …

Q16: During the temporary transition period, an issuer has products that it manufactured or contracted to have manufactured with conflict minerals that are necessary to the functionality or production of those products. Each product is composed of a number of conflict minerals from different sources. In its Conflict Minerals Report, how should the issuer describe any particular product based upon the various combinations of conflict minerals in the product?

A16: During the temporary transition period, if an issuer has a product that would qualify as “DRC conflict free” except that the product contains a conflict mineral that the issuer is unable to determine did not originate in the DRC or an adjoining country, or is unable to determine did not directly or indirectly finance or benefit armed groups in those countries, the issuer may not describe that product as “DRC conflict free.” Both during and after the temporary transition period, however, if an issuer determines that a product contains a conflict mineral that did finance or benefit armed groups in the DRC or an adjoining country, it must describe that product as “having not been found to be ‘DRC conflict free.’”

Q17: Does the scope of the IPSA include the completeness or reasonableness of the issuer’s due diligence, including with respect to which products the issuer described as “DRC conflict free” or “having not been found to be ‘DRC conflict free,’” or which suppliers are covered by the due diligence measures?

A17: No. The IPSA scope is limited to the IPSA objective provided in the rule. … The following diagram demonstrates the two distinct parts of the IPSA objective.

As shown, the objective is to compare A to B and C to D. Any other comparison would be outside the IPSA scope.

Q18: The … due diligence framework used by an issuer may include procedures for obtaining information about a conflict mineral’s country of origin. If so, this aspect of the … framework would encompass the reasonable country of origin inquiry requirement under the rule. In that situation, would the IPSA also include the issuer’s reasonable country of origin inquiry?

A18: No. The IPSA does not need to include the reasonable country of origin inquiry because, under the rule, that inquiry is a distinct step separate from the due diligence process. …

Q19: A product manufactured by an issuer or contracted by an issuer to be manufactured includes some conflict minerals from recycled or scrap sources, which would not require the issuer to file a Conflict Minerals Report. It also includes conflict minerals not from recycled or scrap sources, which would require the issuer to file a Conflict Minerals Report. Must the issuer provide the required disclosures about the conflict minerals from recycled or scrap sources in the Conflict Minerals Report? Would the IPSA of the Conflict Minerals Report include the conflict minerals from recycled or scrap sources?

A19: … The Conflict Minerals Report would not need to include the disclosures for the conflict minerals from recycled or scrap sources. An issuer is only required to obtain an IPSA of its Conflict Minerals Report and not of the disclosures contained in the body of its Form SD.

Q20: The second part of the IPSA objective is to express an opinion or conclusion as to whether the issuer’s description of the due diligence measures it performed … with respect to the period covered by the report, is consistent with the due diligence process that the issuer undertook. The “period covered by the report” is the calendar year. … [I]s the issuer required to exercise due diligence constantly throughout the entire calendar year covered by the Conflict Minerals Report? Could the issuer’s due diligence measures described in the Conflict Minerals Report extend beyond the calendar year?

A20: An issuer’s due diligence measures must apply to the conflict minerals in products manufactured during the calendar year. This requirement, however, does not imply that due diligence measures must be carried out constantly throughout the calendar year. It is also possible that the issuer’s due diligence measures may begin before or extend beyond the calendar year.

Q21: The IPSA objective is to express an opinion or conclusion as to whether the design of the issuer’s due diligence measures … is in conformity, in all material respects, with the criteria set forth in the … due diligence framework used by the issuer, and whether the issuer’s description … of the due diligence measures it performed … is consistent with the due diligence process that the issuer undertook. Although the rule requires that the issuer include in its Conflict Minerals Report a description of the due diligence it exercised, it does not require a separate description of the design of its due diligence framework. The rule indicates, however, that the auditor must express an opinion or conclusion as to the design of the issuer’s due diligence measures “as set forth in” the Conflict Minerals Report. Does the rule require that an issuer provide a full description of the design of its due diligence in its Conflict Minerals Report?

A21: No. … [T]he due diligence measures undertaken that are the subject of the second part of the IPSA must be described in the Conflict Minerals Report, and the description must be in sufficient detail for the auditor to be able to form an opinion or conclusion about whether the description in the Conflict Minerals Report is consistent with the process the issuer actually performed.

On Wednesday the Division of Corporation Finance issued a revision to its July 2011 statement on well-known seasoned issuer waivers. The original statement was issued to provide guidance on what constitutes “a showing of good cause” for purposes of an ineligible issuer waiver request; it outlines the framework that CorpFin uses when assessing such a request. The revised statement updates and refines that original framework based on CorpFin’s experience with waiver requests to date.

WKSIs

A “well-known seasoned issuer” (a WKSI) is an issuer (other than an asset-backed issuer, investment company or business development company) that: (i) meets the registrant requirements of General Instruction I.A or Form S-3 or Form F-3; and (ii) as of a date within 60 days of the determination date, either: (A) has a worldwide non-affiliate equity market capitalization (a public float) of $700 million or more; or (B) has issued for cash more than an aggregate of $1 billion in non-convertible securities, other than common equity, through registered primary offerings over the prior three-year period.

Ineligible Issuers

In addition, in order to qualify as a WKSI, an issuer must not be an “ineligible issuer.” An an ineligible issuer is generally one that:

is an Exchange Act reporting issuer that has failed to file all reports and other materials required to be filed during the prior 12 month period (other than certain reports on Form 8-K);

is, or during the prior three-year period was, a blank check company, a shell company or an issuer in an offering of penny stock;

is a limited partnership that is offering and selling its securities other than through a firm commitment underwriting;

has filed, or has had filed against it, a petition for bankruptcy during the prior three-year period;

is, or during the prior three-year period was, the subject of a refusal or stop order, or is the subject of a pending proceeding under Section 8 or Section 8A of the Securities Act; or

is, or during the prior three-year period was (or whose subsidiary is or was), convicted of any felony or misdemeanor described in certain provisions of the Exchange Act, found to have violated the antifraud provisions of the federal securities laws, or made the subject of a judicial or administrative decree or order prohibiting certain conduct or activities regarding the antifraud provisions of the federal securities laws.

The Commission may waive ineligible issuer status upon a showing of good cause that it is not necessary under the circumstances that the issuer be considered an ineligible issuer. The authority to grant such waivers has been delegated by the Commission to the Director of CorpFin.

Framework for Assessing a Waiver of Ineligible Issuer Status

In assessing a request for a waiver of ineligible issuer status CorpFin will generally focus on how the conduct giving rise to ineligibility relates to the reliability of an issuer’s current and future disclosures. If the conduct does relate to the reliability of an issuer’s disclosures, CorpFin will also focus on the steps an issuer has taken to remediate any deficiencies. CorpFin’s analysis is a facts and circumstances one, with no single factor being determinative and the burden of proof being on the issuer “to demonstrate that the conduct that gave rise to the violation, and the facts and circumstances as they currently exist, do not affect its ability to produce reliable disclosure … . ”

[Updated: April 24, 2014: CorpFin again revised its statement on WKSI waivers to clarify that a criminal conviction or scienter based violation involving disclosure will significantly elevate an issuer’s burden of proof in justifying a waiver request.]

Specifically, some of the factors CorpFin will consider include:

the nature of the violation or conviction;

whether it involved disclosure for which the issuer or any of its subsidiaries was responsible;

whether it calls into question the ability of the issuer to produce reliable disclosure currently and in the future;

whether the conduct involved a criminal conviction or scienter based violation (as opposed to a civil or administrative non-scienter based violation);

who was responsible for the misconduct and whether it was known by the issuer or whether personnel at the issuer ignored warning signs regarding the misconduct;

whether the individuals responsible for or involved in the misconduct were officers or directors of the issuer, or were lower level employees in the operation of a subsidiary;

whether there were red flags about the conduct and whether more senior officers of the issuer disregarded these warning signs;

the duration of the violative conduct (did the conduct last over a period of years or was it an isolated instance);

what remedial measures the issuer has taken to address the violative conduct and whether those actions would likely prevent a recurrence of the misconduct and mitigate the possibility of future unreliable disclosure;

whether there were key changes in the personnel involved in the violative or criminal conduct;

whether the issuer has taken steps to improve training or made improvements to internal controls and disclosure controls and procedures;

the severity of the impact on the issuer if the waiver request is denied against the facts and circumstances relating to the violative or criminal conduct to assess whether the loss of WKSI status would be a disproportionate hardship in light of the nature of the issuer’s misconduct; and

in the context of considering whether a waiver would be consistent with the public interest and the protection of investors, any effects that the issuer’s loss of WKSI status could have for the markets as a whole and the investing public.

Something to Consider Even if You’re Not a WKSI

While CorpFin’s revised statement on WKSI waivers no doubt provides WKSIs with a greater degree of insight into the waiver assessment process, even non-WKSIs can glean insight from the framework in terms of understanding CorpFin’s current thinking on what constitutes a showing of good cause for purposes of a waiver request and perhaps even outside of the context of a waiver request for those issuers that a find themselves in the midst of a violation of the antifraud or other provisions of the federal securities law.